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LUCAS v. CITY OF LOS ANGELES.*
Plaintiff was a guest passenger in an automobile as it was being driven across a street intersection on its right side of the street, at a lawful rate of speed and in response to a mechanical “Go” signal. Before it cleared the intersection a police automobile of defendant municipal corporation, operated upon authorized emergency business traveling at a high rate of speed and disregarding the traffic “Stop” signal, crashed into it. Plaintiff, injured in the accident, was awarded damages of $2,000 against defendant upon trial before a jury. Defendant appeals.
It is contended in behalf of appellant that a municipality is exempt from liability for injuries caused by its police car when answering an emergency police call.
Liability in this case is predicated upon section 1714 1/2 of the Civil Code as in effect at the time of the accident, June 8, 1935. That section (now substantially incorporated in the Vehicle Code as section 400 thereof [St.1935, p. 152]) provided that “every * * * municipal corporation * * * owning any motor vehicle is responsible to every person who sustains any damage by reason of death, or injury to person or property as the result of the negligent operation of any said motor vehicle by any officer, agent, or employee.” Read in conjunction with chapter 263, p. 568, Statutes of 1929 (Act 2602, Gen.Laws 1931), granting freedom from civil liability to members of police and fire departments “for damage to person or property occasioned by any act of such member arising out of the operation, in line of duty, of a motor vehicle of such department while responding to an alarm of fire or an emergency police call,” appellant argues that a legislative intent is disclosed to grant to municipalities and other governmental bodies freedom from civil liability when performing for the protection of its own inhabitants the primary functions of safeguarding life and property. Attention is also directed to section 120 of the California Vehicle Act, St.1923, p. 556, § 120, as amended by St.1929, p. 539 (as in effect at the time of the accident in question herein), which relieved from speed limitations “authorized emergency vehicles,” defined by section 8 1/2 (1) of said act (St. 1923, p. 517, § 8 1/2 (1), as added by St. 1929, p. 509, as amended by St.1931, p. 2101) to include police department vehicles responding to emergency calls. But the same section 120 declares that “the provisions of this section shall not, however, relieve the driver of an authorized emergency vehicle * * * from the duty to drive with due regard for the safety of all persons using the highway.”
That the exemption from speed limitations granted by law to police automobiles on emergency calls “does not constitute a license” to the drivers of such vehicles to operate them in disregard of the rights and safety of other persons is specifically enunciated in the case of City of Sacramento v. Hunger, 79 Cal.App. 234, 249 P. 223; and two recent decisions of this court, Rogers v. City of Los Angeles, 6 Cal.App. 294, 44 P.(2d) 465, and Lossman v. City of Stockton, 6 Cal.App. 324, 44 P.(2d) 397, definitely hold that a municipality enjoys no exemption from liability for injuries resulting from the operation of an authorized emergency vehicle. It is true that those cases concerned ambulances rather than, as in the instance here under consideration, a police car, but it is difficult to discern any valid distinction between the two classes of vehicles. In fact, they are both listed in section 8 1/2 of the California Vehicle Act as “authorized emergency vehicles,” and nowhere is there apparent a legislative intent to create a specialized exempt classification for police and fire automobiles as distinguished from other emergency vehicles. Section 1714 1/2 of the Civil Code also employs the significant term “any motor vehicle” in describing the type of automobiles for whose negligent operation the governmental owner is made liable in damages. Appellant cites in support of its contention the case of Armas v. City of Oakland, 135 Cal.App. 411, 27 P.(2d) 666, 28 P.(2d) 422, but this same case was before the court and was reviewed in the Lossman and Rogers Cases, and in the Rogers Case the Supreme Court denied a hearing. It must be regarded as settled that the law of this state does not confer upon municipalities the exemption from liability for which appellant in this case contends.
It is also urged by appellant that the trial court erred in refusing to allow proof as to the nature of the emergency call to which the police car was responding at the time of the accident. It was already in evidence that the police car was answering a call concerning ransom money. Respondent admitted that appellant's car was upon official business and that it was an authorized emergency vehicle. In instructing the jury the trial court stated that “the vehicle operated by the defendant City of Los Angeles was, and is, an authorized emergency vehicle.” Under such circumstances nothing would have been gained by an elaboration upon the particulars of the emergency errand upon which the police were engaged. No error was committed by the court in refusing appellant's proffered evidence as to the details of the emergency, for such evidence was simply cumulative and the jury already was informed by uncontradicted evidence and by the admission of the respondent of the ultimate fact that the police car was an authorized emergency vehicle.
One further contention is made by appellant, namely, that no recovery may be had because, it is claimed, the injury suffered by respondent was caused by the wilful and negligent act of the driver of the car in which she was riding. Although appellant recognizes that negligence of the driver of the vehicle in which respondent was a passenger may not be imputed to respondent under a plea of contributory negligence, nevertheless, urges appellant, the state of the evidence is such in this case that it must be held that the actions of the driver of the car in which respondent was riding constituted the sole proximate cause of the accident. This contention arises from certain testimony of the driver that after he heard the siren of the approaching police car he did not stop, but advanced his own car in the thought that he could clear the intersection and thus escape from the path of the police vehicle. The situation confronting the driver in the path of the onrushing police car was critical. He was in the intersection; he saw that the police car could not or would not obey the adverse signal. In this dilemma he attempted to advance to a safe point. It is possible that his judgment as to the best course to pursue under the circumstances was defective, but as stated in Boyle v. Stewart, 116 Cal.App. 714, 3 P.(2d) 326, it is easy “when it is all over and there is a full opportunity to cogitate on dangers or absence of dangers” to make a forcible argument for or against a certain course of conduct, whereas the driver in the face of peril was perhaps prevented from exercising a deliberate and accurate judgment.
It was peculiarly the province of the jury herein to determine the facts and to place the blame for negligence; nor can we say that as a matter of law, in the face of conflicting evidence, the acts of the driver of the car in which respondent was riding were solely the proximate cause of the accident. Moreover, in addition to the admonition of the California Vehicle Act (section 132 [St.1923, p. 560, as amended by St.1929, p. 542]) that in spite of the right of way granted to operators of authorized emergency vehicles they must nevertheless observe the rule to drive with due regard for the safety of all persons using the highway, the same act in section 133 contained the specific provision that upon the approach of an emergency vehicle giving audible signal by siren the driver of every other vehicle shall drive to a position as near as possible and parallel to the right–hand edge or curb of the highway, “clear of any intersection.” Whether under the circumstances the parties to this accident were negligent within the law as expounded by the court was properly committed to the jurors as fact–finders, and their determination should not be disturbed on appeal.
GOULD, Justice pro tem.
We concur: CRAIL, P. J.; WOOD, J.
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Docket No: Civ. 11044.
Decided: September 21, 1936
Court: District Court of Appeal, Second District, Division 2, California.
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